This podcast is sponsored by TimelyContract.com. Visit TimelyContract.com for easy, fast, and expert solutions for your real estate transitions. Timely Contract, providing better information for real estate transactions. Welcome to the new world of transactional real estate. Welcome to Timely Contract!Show Transcript:Hi, I’m Shawn, an attorney with Macomber Law in Coeur d’Alene, Idaho. I serve clients who have real property issues in Washington, Idaho and Montana. Today we’re talking about road ownership.Let’s say a road no one uses is next to your property. And let’s say you think to yourself, “If only I could use that road, I could build a shop there and get all my tools/plants out of the garage/dining room. Nobody else ever uses it and it’s not even paved.” Tempting as it might be to build the shop on that lonely road, first find the answers to some basic questions: Like, is this really a road, or could it be something else? If it is a road, is it a private road (for example, owned by a subdivision or a private road association)? Or is it a public road (dedicated to or claimed by a city, a county, or a highway district)? If someone else – whether a private entity or governmental entity – has a right to claim the road, what steps can you take to legally claim the road for yourself? How can you avoid risking the local governmental code enforcement officer requiring you to tear down your brand-new shop? And who pays for all this anyway?To find out whether the road is private or public, consider consulting your title report. If your home is in a city, town, or subdivision, your title report might contain reference to a record of survey, a city plat, or subdivision plat. Those instruments should indicate whether the road is held privately, or dedicated to a governmental entity like a city, a county, or a highway department. Your title report may simply refer to a “right-of-way,” whether public or private. If you live in a more rural area, you may need to contact your county road and bridge department to determine whether the road in question is public or private. If you still have questions about the plat, the survey, or the information you receive from the county, a qualified land-use attorney can help you find the answers.If a governmental entity owns the road, you may be able to negotiate obtaining the portion of the unused road with the city or county, just as you would if a private person or road association owned the road. You may want to consult with a real estate agent or an appraiser to find out how much that abandoned road is worth in the current marketplace. This will give you a starting point to negotiate a sale or trade of the road with its owner. Recognize however, a private real property owner has no obligation to even start negotiating a purchase, exchange, or donation of the road to you. In these United States of America, private property owners cannot be forced to sell their property to another person absent a court order. On the other hand, if the road or right of way is owned by a city, county, or highway district, starting out negotiating with those entities is not usually the most effective way to realize your goal of putting that unused road to your personal use. Instead, state statute combined with city or county ordinances will dictate how you must proceed and achieve the goal of building shop. Generally, someone wanting to build on a public right-of-way must first ask the city or the county to give up the right-of-way. The legal term is “to vacate or abandon.” Most governmental entities require not only a written request or petition to vacate a road, but also that the petitioner pay the processing costs or fees.Dedicated streets, sometimes called rights-of-way belong, not to the city or county, but to the people in the city or county. As publicly elected officials, the county commissioners or the city council have the obligation to be good stewards of publicly owned property (which includes dedicated streets or rights-of-way). To be fair not only to the petitioner but also to the other citizens they represent, the law requires that a city council or board of county commissioners hold a public hearing when presented with a petition to vacate or abandon a street. Notice of the hearing should be published in a local newspaper, posted on or near the right-of-way or street in question, and mailed to nearby neighbors. At the hearing, the board of county commissioners or the city council are supposed to hear evidence from the petitioner, supporters, and opponents of the request to vacate the street or right-of-way, as though the board or council are judges. In fact, members of the board or counsel are required to act as judges, in a “quasi-judicial” capacity. The members may only consider information and evidence that proponents or opponents submit during that hearing. Should they do otherwise, it is likely that they violated their ...
